Saturday, April 30, 2011

King & Spalding, the Atlanta-based law firm, announced this week that it has ditched its new client: the United States House of Representatives. After a wave of criticism the firm withdrew - saying its agreement to represent the Congressional majority had not been properly "vetted". Defense of the Defense of Marriage Act (DOMA) was to be led by former Solicitor General Paul Clement - who quit the firm out of loyalty to his client.

Promises had been extracted when the representation was undertaken: no one working for King & Spalding could speak out on the issue. King & Spalding had agreed

"that all of of its partners and employees who do not perform services pursuant to this agreement will not engage in lobbying or advocacy for or against any legislation (i) that is pending before the Committee during the term of this Agreement or (ii) that would alter or amend in any way the Defense of Marriage Act and is pending before the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement."

The restrictions on speech Congress demanded are not impermissible. They are not required by but are consistent with the principle in RPC 1.10 (a) that imputes to an entire firm any conflict of interest that one lawyer in a firm has. I think Congress is within its rights to insist that a firm (as a unified entity), as a condition of representation, not participate in any advocacy related to the issue. I suppose that they feared headlines like "K&S LGBT Associates speak out..."

The strong form of criticism - K&S is a bad actor because they represent a bad person - clearly should be rejected. As RPC 1.2 makes clear, a lawyer is not responsible for a client's conduct. That is an essential part of professional independence. Campaigns denouncing lawyers for affording representation to unpopular clients are therefore to be deplored.

Theodore Olson

But the softer version "don't hire K&S" or "do hire K&S" because they stood up for the (wrong) or the (right ) principle is a much closer question. When Fordham awarded the annual Stein Prize to Ted Olson my stomach knotted. The man gave us Hopwood v. Texas (abolishing affirmative action in Texas schools); Bush v. Gore (halting the Florida recount and handing the White House to the candidate who lost the popular vote); and Citizens United (the green light for unlimited corporate political spending). But he also brought us Perry v. Schwarzenegger - the challenge to California's Proposition 8, in partnership with David Boies. So should Olson be honored or deplored? In the end I choose the former.Update (5/5/11):This issue continues to provoke debate. Stanford Law prof. Deborah Rhode has a new piece in the National Law Journal. And there has been a lot of comment on the issue (and Rhode's view) at Legal Ethics Forum.

Friday, April 29, 2011

The number one concern is the unemployment rate. Our "unemployment rate" is the number of active seekers compared to job holders. The real number would include those who have given up looking. Or who collect Social Security because they can't find a job. In any event it is dangerously high. But you hear little about it other than magical thinking from conservatives: unleash the tiger of the private markings...and poof ..jobs appear. The politically unacceptable option is for the government to approve major spending.

Thursday, April 28, 2011

Tribal knowledgevsactual knowledgefront: Yesterday, about half of all Republicans thought Obama was foreign born, and therefore an illegal occupant of the White House. How many Republicans will think the same thing one week from now? My guess is: about half. We've reached that stage on just about everything. It's probably been true of human beings throughout time, but is more obviously significant in politics now, that generally people don't act like scientific investigators, or judges in moot-court competitions, when parsing the logic and evidence behind competing arguments to come up with political views. They go on loyalty, and tradition, and hope, and fear, and self-interest, and generosity, and all the rest -- as the second half of my recentarticle on the new mediadiscussed.Here we have a wonderful real-world test: if "actual knowledge" mattered, the number of people who thought Obama was foreign-born would approach zero by next week -- with exceptions for illiterates, the mentally disabled, paranoid schizophrenics, etc. My guess is that the figures will barely change.

Wednesday, April 27, 2011

Barack Hussein Obama finally played the trump card today. Not a certificate of live birth, but a certified true copy of the original. He was born to a Kenyan father and a Kansan mother in Honolulu, Hawaii on August 4, 1961. Donald Trump claimed victory: that he the casino operator had "forced (the President's] hand". But Obama had it right when he referred to "carnival barkers". Check out TPM's slide show - Best of the Birthers.

Monday, April 25, 2011

In the Vioxx cases "targeting" of physicians was a big issue. The hard sell was on for a medication with little to commend it - and experience would prove - much to fear from it. The high-priced patented prescription medication competed principally with the generic naproxen - sold as Aleve. Merck's sales staff was armed with information from pharmacy benefit providers about what medicines the doctors prescribed.

Three states have limited the practice. The Supreme Court will soon hear the case - Sorrell v. IMS Health, Inc. I don't know that it is an invasion of privacy. But I do think it is part of a hard sell that presents risks that doctors will respond to the blandishments and the pressure, rather than the data about the drug's risks and effectiveness.

Monday, April 18, 2011

Peking University law professor He Weifang has issued an open letter decrying the "strike hard" crime control campaign in Chongqing. He is concerned about excessive use of the death penalty, and an unnecessary harshness in the anti-crime campaign generally.

Friday, April 15, 2011

"We contribute to programs like Medicare and Social Security, which guarantee us health care and a measure of basic income after a lifetime of hard work; unemployment insurance, which protects us against unexpected job loss; and Medicaid, which provides care for millions of seniors in nursing homes, poor children, those with disabilities. We're a better country because of these commitments. I'll go further. We would not be a great country without those commitments." - Barack Obama, April 13, 2011, George Washington University

HERE is James Fallows analysis of the rhetoric of the President's debt and deficit speech at George Washington Universityon April 13, 2011. HERE is the insufferable David Brooks conceding that Obama will be re-elected. HERE is the transcript. And this is the video.

It wasn't much, the narrow river that marked the border between Italy and Gaul. but Caesar was told not to cross it. He did and you remember his name, not the guy who lost. Josh Marshall says that today's vote to embrace the Paul Ryan `let's end Medicare budget' - by all but six House Republicans is a fateful, no turning back day. The Republican Party has just gotten carried away by their hostility to government and celebration of private enterprise. It's a popular idea. Nobody likes to go to the DMV. But private enterprise also makes us very nervous. Downsizing, plant closings, higher health insurance deductibles, real estate bubbles and crashes - all make people worry. "And now they want to take away Medicare" is the line the Republican Party just handed to the Democratic Party. They have crossed the Rubicon.

Tuesday, April 12, 2011

"I believe we have a duty to care for our parents so that they can live their lives in dignity. That duty includes securing Medicare.” He also warned that the GOP’s budget “violates our values.”And when Clinton vetoed the GOP proposal, he held up Johson’s pen. “Three decades ago, this pen you see here was used to honor our values when President Johnson used it to sign Medicare into law,” Clinton said, adding: “I am using this pen to preserve our commitment to our parents.”Contemporaneous press accounts indicate that it was only after Clinton adopted this strategy of fighting that he began to rise in the polls.

Monday, April 11, 2011

The United States Court of Appeals for the Ninth Circuit has declared unconstitutional the key provisions of the Arizona law S.B. 1070, which provides, in part:

S.B. 1070, Arizona

“Any person who is arrested shall have the person’s immigration status determined before the person is released.”
Sec. 1. Intent
The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

The 2 -1 decision includes a bitter dissent by Judge Bea who ridicules the majority with the predictable reference to Humpty Dumpty "“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

Judge John Noonan, concurring, makes the most powerful argument, to my mind. Determining immigration status is a federal job. Aliens are, by definition, the subjects or citizens of foreign countries. The United States, not the states regulates our relations with foreign nations. Federal preemption operates to supplant Arizona's own foreign policy, Noonan says:

The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations. Whatever in any substantial degree attempts to express a policy by a single state or by several states toward other nations enters an exclusively federal field.

Arizona's drive them out, attrition through enforcement, etc. law certainly appeals to one sort of common sense. Not the "common sense" that is most pronounced here - where the Statue of Liberty resides. The dilemma of immigration is that we have the right and need to control our borders; but now that so many millions are here, with families of mixed native born and immigrant enmeshed in our society, sorting it out, rather than driving them out seems to me to be the common sense of it.

Saturday, April 9, 2011

"Details on the appropriations deal are still hard to come by, but you don’t need the details to know that substantial short-term cuts in domestic discretionary spending will hurt the poor while harming macroeconomic performance. The problem with not agreeing to the deal, of course, is that a government shutdown would also hurt the poor while harming macroeconomic performance. If you genuinely don’t care about the interests of poor people and stand to benefit electorally from weak economic growth, this gives you a very strong hand to play as a hostage taker. And John Boehner is willing to play that hand."

"I hope people remember this year next time large Democratic majorities produce an inadequate stimulus bill, a not-good-enough health reform bill, a somewhat weak financial regulation bill, and fail to deliver on their promises for immigration and the environment. It’s easy in a time like that to get cynical and dismissive about the whole thing. But there’s actually a huge difference between moving forward at a slower-than-ideal pace and scrambling to reduce the pace at which you move backwards. Now we’re moving backwards."

Thursday, April 7, 2011

On Krugman's blog are the original numbers put out by Rep. Paul Ryan. they are based on wildly optimistic unemployment rate - of 2.5%, which have never been achieved. Targets by planners used to e around 4%. Now 5% - 6% is considered the best attainable.

Wednesday, April 6, 2011

SALTLaw blog reports on the April 2-3 public hearings by the ABA's standards review committee (SRC). Discussion centered, unsurprisingly, on the SRC's apparent call for elimination of security; and on the upstairs-downstairs caste system - the legal writing, clinical, and podium faculty hierarchy.

Two birds with one stone. Here I get to go after two of my favorites - Rep. Paul Ryan, and the insufferable David Brooks , thanks to Brad Delonge's re-posting of Jonathan Zasloff:

Moment of Deceit: A few years ago, Mark told me that it’s easy to be a blogger on the west coast: wait until 9 pm Pacific time, look at David Brooks’ column, and point out how idiotic it is. He was right; it IS easy. But today, it’s necessary. Today (or tomorrow?), Brooks, who favored the extensions of all Bush-era tax cuts, and opposed the Affordable Care Act because it didn’t cut costs enough although he also opposed its cost-cutting measures, now hails Paul Ryan’s new budget in a column ironically entitled “Moment of Truth.” The column praises Ryan as “courageous” and “setting the standard for seriousness.”

Where do you start?

How about in the first paragraph, which lauds the Simpson-Bowles plan and conveniently neglects to mention that Ryan opposed it. Then:

The Ryan budget will put all future arguments in the proper context: The current welfare state is simply unsustainable and anybody who is serious, on left or right, has to have a new vision of the social contract.

No, that is not the proper context. The proper context is 1) that if we ended the Bush tax cuts, bringing us back to the socialistic 1990′s; and 2) stopped fighting wars in Iraq and Afghanistan, we could get a great deal of the budget under control. Moreover, every other advanced democracy is able to cover its entire population and control costs better than we do. That is the proper context.

It is hard to imagine Benjamin Netanyahu as the one who delivers peace, but hope springs eternal.

The initiative lays out the framework for peace agreements between Israel, Syria and the Palestinians. It calls for a sovereign and independent Palestinian state based on the borders between Israel and Jordan in 1967 but modified to ensure territorial contiguity for the Palestinian state. Some settlements would be placed under Israeli control.Compensation would be paid to refugees and their host countries by Israel and the international community, according to the initiative, but the refugees would be able to return only to the Palestinian state, with a few exceptions who would be allowed to return to what is now Israel. The plan also calls for a road link between the West Bank and Gaza, which would cut across Israeli territory but would be under Palestinian control.....

Monday, April 4, 2011

Attorney General Eric Holder unsealed the indictment and announced today with genuine regret today that he will be unable to bring 9/11 planner Khalid Sheikh Mohammed to trial in a civilian court.

Khalid Sheikh Mohammed, and Bin-Laden

It really disturbs me that instead of being proud of our system of justice so many - especially Republicans in Congress who should know better like Lindsey Graham - treat the administration's plan to try the 9/11 for capital offenses before a jury as something on the order of handing out candy to children on Halloween. And then there was Sen. Charles Schumer joining with Graham in the `terrorists don't deserve justice' camp to prove that Democrats can pander to "get tough" types with the best of them..

I have written that wanted to be a KSM juror. It is we who were attacked. I think we should pass judgment on our attackers, not soldiers at Guantanamo - a military base seized in a colonial operation a century ago, as I have written.

Two recent law-related events — a harsh conviction and a lofty statement by a leader — reflect basic tensions in Chinese law and governance that will likely continue to grow.

A dedicated Chinese democracy activist, Liu Xianbin, was sentenced on March 25th by a Beijing court to 10 years in prison for “slandering the Communist Party.” His conviction came just weeks after Wu Bangguo, Chairman of the Standing Committee of China’s National People’s Congress (NPC), presented a report at the legislature’s plenary session in early March in which he stated that China has attained the goal set in 1997 of establishing a “complete set of laws” — that is, “a socialist system of laws with Chinese characteristics.” Wu warned that China must “never waveron key fundamental issues of principle such as the fundamental system of the state.”...

Saturday, April 2, 2011

The United Nations may recognize Palestine as a member nation: Gaza, west bank, Jerusalem. That would give Palestine legal stature it has lacked til now. And it would further isolate Israel. See the Times acccount.

Roger Williams University School of Law is hosting Blowout: the Legal Legacy of the Deepwater Horizon Catastrophe. The Agenda is HERE

I will participate in a panel on the tort system's response. My Abstract follows.

Diving into the wreck: BP and Kenneth Feinberg’s Gulf Coast Gambit

by George Conk

for delivery April 13, 2011

Mass tort claims are mostly associated with heedless industrial manufacturing conditions (asbestos) and mass marketing of little-studied drugs (Vioxx) in which thousands of events were aggregated through litigation. Many jury trials (asbestos) and bellwether trials (Vioxx) have provided estimates of value and moral judgment of the defendants.

The Gulf Oil Spill claims arise from a single event arising from similar regulatory failure and industrial malpractice. Claims differ in the directness of their causal relationship to the event. Historically judges have oscillated between assigning the issue to the jury or themselves declaring the limits of liability. Here the process has been largely taken from both judges and juries by BP’s agreement to establish a fund plausibly sufficient to satisfy the claims which are overwhelmingly for economic loss.

BP has sought to navigate the strait by placing both roles in the hands of a solomonic lawyer - Kenneth Feinberg whose broad settlement authority is expected to produce both prompt compensation for current losses and general releases that will both credibly compensate for any future and permanent losses, and protect BP from loss beyond the initial estimate.

The mechanism of administering claims and making payments has started well. But the Administrator’s claim of neutrality was a significant misstep. Kenneth Feinberg was judicially compelled to acknowledge that he is BP’s agent for claims resolution. His offers of early settlement of future loss claims are burdened by the belated acknowledgment that he is BP’s agent, his reliance on a report by a Texas A&M scientist who tentatively predicts a continued strong recovery of the fisheries, and by BP’s public complaints that he has been too generous and has demanded too little documentation. Traditionally such issues have been resolved in the courts. The BP settlement plan suffers from its lack of an element for resolution of such issues by public authority.

Roger Williams University School of Law is hosting Blowout: the Legal Legacy of the Deepwater Horizon Catastrophe. The Agenda and Program are HERE. Video introduction by Susan Farady, Director of the Marine Affairs Institute at RWU Law School follows.

Friday, April 1, 2011

People from far-flung places (I am thinking of a Swedish China law expert; and the director of an conservation law program and others) decide to carry a "green" spot. It's common to see "think before you print", etc. Isn't wood a renewable resource? Why is it never "before you start your car think about the environment"?